I Did Not Approve This Message

Jesse Eisenberg and Jason Segel filming The End of the Tour, a movie about David Foster Wallace not authorized by his literary trust. Photo: loveleeliz, via Instagram

In 2010, just under two years after David Foster Wallace’s death, the journalist David Lipsky published Although Of Course You End Up Becoming Yourself: A Road Trip with David Foster Wallace, a memoir of transcripts from an interview he’d conducted with Wallace in 1996 for Rolling Stone. The book was well reviewed—it made the Times best-seller list—and late last year it was announced that it would become a film starring Jesse Eisenberg as Lipsky and Jason Segel as Wallace. The End of the Tour is already in postproduction and slated for release in late 2014, but last week, the Wallace Literary Trust issued a public statement making it “clear that they have no connection with, and neither endorse nor support” the film: “There is no circumstance under which the David Foster Wallace Literary Trust would have consented to the adaptation of this interview into a motion picture, and we do not consider it an homage.”

I was struck by similarities between this situation and the case of James Joyce and Samuel Roth, which began in 1926. In his recent book Without Copyrights: Piracy, Publishing, and the Public Domain, the scholar Robert Spoo devotes two chapters to Joyce’s desperate attempts to defend his intellectual property against Roth, an infamous American “booklegger” who reprinted the entire text of Ulysses, as well as large portions of Finnegans Wake, without permission. Roth’s actions, like those of the filmmakers of The End of the Tour, were not illegal: Joyce didn’t possess the U.S. copyright on his works, which were originally published in Europe and—after a brief window during which he could have established copyright by securing American publication—fell immediately into the U.S. public domain.

Nonetheless, Joyce retaliated. His campaign began with a letter of protest signed by more than 160 authors and intellectuals including T. S. Eliot, Virginia Woolf, H. G. Wells, W. B. Yeats, and Albert Einstein. Roth was widely excoriated in the literary press, sometimes in viciously anti-Semitic terms. Joyce was held up as a kind of martyr. When the author did finally take legal action against Roth, in March 1927, he alleged not copyright infringement but name misappropriation; his complaint was filed under Section 51 of the New York Civil Rights Law, which protects “[a]ny person whose name, portrait, or picture is used … for advertising purposes or for the purpose of trade without … written consent.” In other words, Joyce was challenging not the piracy of his work but the commercial exploitation of his name and reputation. For this indignity, he sought half a million dollars in damages.

The case never went to trial. Roth, bleeding funds and facing separate criminal charges for obscenity, settled by agreeing to a “consent injunction,” which prohibited him from making use of Joyce’s name in the future. Though Joyce saw no money from Roth and failed to establish a legal precedent for authors seeking to protect their reputations—his stated reason for bringing the suit in the first place—he was able to use the opportunity to reframe his reputation in ways that went far beyond Roth’s piracy.

“By presenting himself as a sufferer under American law, Joyce rewrote a narrative that had cast him as the law’s subverter,” Spoo writes. Ulysses, to the extent that it was known at all, was widely regarded as an immoral and indecent book, but “[i]n the wake of Joyce’s revisionary campaign, Ulysses came to seem more sinned against than sinning, less a corrupter of morals than a scene of trespass.” Spoo argues that the Roth case was a turning point in Joyce’s career that ultimately led to the authorized American publication of Ulysses with Random House in 1934—and that Roth “in the end was immolated on the altar of Joyce’s aggrieved celebrity.”

“The public statement seems to hover between an admission of helplessness and a threat of reprisal,” Spoo observed, in a lawyer’s careful tone. “I think they’re hedging. They’re saying, ‘We know we can’t stop the production, but we reserve our rights in the future.’”

Spoo emphasized that there were important differences between Joyce’s actions and the Wallace estate’s: in 1927, Joyce was alive, and thus protected under privacy and antidefamation laws that don’t extend to Wallace as a deceased person. “In the United States there are severe limitations on preventing anyone from talking about the dead,” he told me. “You can’t libel or slander the dead. They don’t really have any privacy rights to speak of.”

But because they hold the copyrights to Wallace’s works, the Wallace estate’s case may be stronger than Joyce’s was. Even though the estate doesn’t own the rights to Lipsky’s memoir, Spoo speculates that “there could be a copyright issue if the movie were to make use of any of [Wallace’s] published writings without permission.” Then, too, the transcripts of the interview Wallace gave to Lipsky in 1996 could be copyrighted and claimed by the Wallace estate, since taped interviews, according to Spoo, present a gray area, legally speaking.

A more likely legal recourse for the estate would involve not Wallace’s intellectual property but his name, reputation, and what is called the right of publicity or “personality rights.” Could the Wallace Literary Trust sue the filmmakers of The End of the Tour on the basis of name misappropriation, as Joyce had done in 1927? Possibly, though the legal strategy wouldn’t be the same. The 1903 privacy rights statute under which Joyce’s complaint was filed is still on the books, but only in New York State, and only for the living; there are no federal laws pertaining to publicity rights. But California—the most obvious state in which to bring suit, since it was Wallace’s place of residence at the time of his death, and the case involves a Hollywood production company—has very stringent personality rights laws. (In 1985, the legislature passed the Celebrity Rights Act, which grants personality rights for seventy years after death.) “The Wallace estate are probably thinking about this,” said Spoo. “They probably are wondering to what extent will the movie be using Wallace’s name, and will it be in such a way that they could possibly have a cause of action.”

A further complication: in the eyes of the law, is the version of Wallace played by Jason Segel a real person or a character? If the estate makes a fuss, the filmmakers could easily argue the latter. “If somebody’s name is used in a book”—even a biography or a work of nonfiction—“it is typically very difficult,” according to Spoo, “to sue for a violation of publicity rights.”

How much damage could the Wallace estate do to The End of the Tour? Legally, their options may be limited, but, as the tale of Joyce and Roth shows, there are always options for famous authors to pursue in the court of public opinion. If they continue to be vocal about their displeasure, they could have a substantial effect on the film’s fortunes among its core audience of Wallace diehards. While they might not succeed in making David Lipsky or the film’s director James Ponsoldt into cultural pariahs—the modern-day equivalents of Samuel Roth—they could definitely make their lives more difficult.

* * *

Some literary estates are more obstructionist than others. Joyce’s estate is, notoriously, one of the worst: on principle, his grandson Stephen refuses many requests to quote from Joyce’s work. On the face of it, there’s nothing wrong with the Wallace Trust’s attempt to distance itself from a film it has nothing to do with, if that’s as far as it goes—but some Wallace scholars are already worried that this statement may augur ill for the future.

“I’ve been troubled by the idea that one has to reach out to the estate of a deceased person to get permission for things,” Spoo said. He allowed that some uses of an author’s name and work might be legally sound but ethically questionable, and it’s appropriate, in such cases, to reach out to an estate to ask their blessing. “But I don’t know where that line is, so I refuse to draw it,” he went on. “Every time I try to draw it, I find that I’m silencing something that could be valuable to talk about. I just don’t think there should be a limit on how we interpret an author.”

Wallace is heir to a literary tradition that has historically sought to limit interpretation in just this way. Modernism and postmodernism are aesthetic movements that evolved alongside the strengthening of intellectual property laws and the growth of a hyper-protectionist rights-based culture, particularly in America. “Modernist authors thought of their work as ownable and resented assaults on it,” Spoo writes. “The idea of literary property was talismanic, emblematic of respect for artistic labor, an acknowledgment of the dignity of the attic.” Like many of the ideas modernist writers espoused, this one was tinged with anxiety: “The fear of failed copyrights lay behind many developments of modernism.”

I asked Spoo whether this fearful, protective attitude toward intellectual property persisted, in his opinion, into the postmodern period. The question seemed to catch him off guard, but he did his best to indulge me: “If modernism is a period of concern over copyright—or of trying to find reasonable substitutes for copyright—is postmodernism a postcopyright period?” he wondered aloud. “The writing changes, the whole sense of one’s relationship to one’s own writing changes. When you look at the voice of a Pynchon or a Gaddis or a Burroughs, is it a voice that is claiming singular ownership of these words? I’m not sure it is. There seems to be a postproprietary attitude in the writing itself. Whether that reflects a postcopyright attitude towards one’s work, though, I don’t know.”

Some readers of Wallace have attributed such a postproprietary ethos to him. Writing in The Awl, Maria Bustillos sensibly warns us not to “even speculate on the sad and unfathomable question of what Wallace would or would not have consented to”—but criticizes the estate for attempting to police his reputation. “Any honest effort to discuss, to understand, and to build upon the conversation Wallace’s work began should be honored by readers in the spirit of intellectual curiosity and open-heartedness he himself embodied in his short life,” Bustillos writes.

Yet we know from D. T. Max’s biography, Every Love Story Is a Ghost Story, that Wallace was intensely concerned with his public image. In this he follows in the footsteps of his heroes Thomas Pynchon, William Gaddis, and Don DeLillo, all of whom have been, in their way, just as controlling of their reputations as Joyce was, even if they exert this control through anonymity and refusal rather than through protectionist aggression. Is there a connection between the kind of encyclopedic, all-encompassing fictions that both Joyce and Wallace wrote—what Tom Le Clair has called “the systems novel” and James Wood “hysterical realism”—and the slightly hysterical attempts of writers and literary estates to shape the public’s impression of their legacy? I think of Oscar Crease, the playwright at the center of Gaddis’s A Frolic of His Own, obsessively pursuing a futile lawsuit against filmmakers he thinks have stolen his idea: a grotesque version of the artist as rights-holder, disfigured by his sense of injustice.

Whether the Wallace estate’s attempt to dictate the terms of his public image is in the author’s spirit or not, one thing is certain: it’s doomed to failure. Writers’ reputations, particularly after their deaths, are not carefully crafted works of self-expression but palimpsests by diverse hands. “With somebody as big as Wallace or Joyce, it’s ultimately impossible for one entity to shape their authorial image,” Spoo told me. “There are too many people interested in them to control it.”

Evan Kindley is an editor at large at the Los Angeles Review of Books and a contributing editor at The Pitchfork Review. He teaches at Claremont McKenna College.

4 Comments

This mythical elevation of DFW is confounding. His few works are interesting, but the mystique is over blown. Many, many good writers out there as good or better.

David Hadar |
May 2, 2014 at 5:09 am

Ironically and as biographer D.T. Max, Wallace’s own Girl with Curious Hair was almost not published because of worries about copyright/ publicity rights-type litigation about the content of some of the stories, especially, “My Appearance.”

Shaun Mason |
May 2, 2014 at 6:33 pm

The irony of this is that: a) in Infinite Jest Wallace basically wrote a 1200-page suicide note, thus every fear, discomfort, idiosyncrasy, phobia, pet peeve, fault and annoyance that Wallace ever felt or expressed is described in Herculean detail by Wallace himself. Nothing you could come up with based on anything he said in public could distort his image more than his own novel did. b) there is so much YouTube footage of interviews with him that his public image is already fast secured for those of us who seek out such things.

vhat |
May 4, 2014 at 10:51 pm

There is a distinction here that is omitted. Roth’s intentions were “good” in that he liked Joyce’s work and printed the book for the American market.

However, one’s intentions are not necessarily so pure. Roth could have published the book in an anthology of books he thought were terrible. He could have written a preface excoriating the literary style, Joyce himself and generally added all manner of additions while still not altering the story itself.

So I don’t think that the Roth case was a necessarily a good legal example of overly protective author trusts. Given the number of bad movies that have been made based on books (with the author’s consent),it’s fair for the Wallace trust to take that position.

Salinger’s trust is extremely vocal about even allowing schools to name student scholarships after him – and that’s a true shame.